Alma v. Manufacturers Hanover Trust Co.

• Decision Date: 17 August 1982
• Docket Number: No. 79-4614,79-4614
• Citation: 684 F.2d 622
• Parties: 11 Fed. R. Evid. Serv. 801 Pedro ALMA, Plaintiff-Appellee, v. MANUFACTURERS HANOVER TRUST CO., as Trustee for Tanker Charter Corporation and Maritime Overseas Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 622

684 F.2d 622

11 Fed. R. Evid. Serv. 801

Pedro ALMA, Plaintiff-Appellee, v. MANUFACTURERS HANOVER TRUST CO., as Trustee for Tanker

Charter Corporation and Maritime Overseas

Corporation, Defendant-Appellant.

No. 79-4614.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 1981.

Decided Aug. 17, 1982.

John H. Riddle, Lillick, McHose & Charles, San Francisco, Cal., for defendant-appellant.

Carolyn L. Rosenblatt, Law Offices of Bernard Sacks & Sullivan, Graham & Camp, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, HUG and SKOPIL, Circuit Judges.

HUG, Circuit Judge:

This case involves a ship owner's appeal of a judgment that held it liable for damages for the injuries of an employee. The ship owner disputes the district court's consideration of a medical expert's opinion and challenges the computation of the damage award. We affirm the judgment of the district court.

I BACKGROUND AND FACTS

Alma brought this action under the Jones Act, 46 U.S.C. § 688, for injuries suffered in a fall while he was serving aboard the Overseas Juneau as an ordinary seaman. He named as defendants the ship's owner, Maritime Overseas Corporation, and its trustee, Manufacturers Hanover Trust Company. The complaint alleged that Alma's injuries were due to the defendants' negligence and to the unsafe and unseaworthy condition of the vessel. The specific injury claimed was aggravation of a congenital defect affecting Alma's spine, which resulted in permanent partial disability.

The district court held that the complaint failed to state a claim against Manufacturers Hanover Trust. The dismissal of claims against that defendant is not appealed here.

At trial, Maritime Overseas Corporation ("Maritime") admitted liability for Alma's fall, but denied that any permanent disability was caused by the fall. It contended that such a disability, if it existed, was caused by diabetes mellitus, from which Alma suffers. Maritime presented the testimony of a neurosurgeon, Dr. Pevehouse, to support this theory. Alma supported his theory that the fall caused his disability with the testimony of an orthopedic surgeon, Dr. Cowan. He also presented testimony of a second orthopedic surgeon, Dr. Gill, to rebut the testimony of Dr. Pevehouse.

After considering the testimony of all three experts, the district court found that Alma did suffer a disability caused by the fall, and that he would lose two months work a year for the remainder of his work-life expectancy. The district court's award included $1,961.80 for loss of past earnings Maritime made a timely motion for a new trial on two grounds. First, it claimed that the district court erred in basing its decision in part upon the testimony of Dr. Gill, whose function, it contended, should have been limited to that of a rebuttal witness. Second, it claimed that the court erred when it failed to discount the award of future earnings to its present value, though no evidence of an appropriate discount rate was presented. The motion for a new trial was denied. This appeal is based on both issues.

$27,720.00 ¹ for loss of future earnings, $10,000.00 for pain and suffering, and the costs of suit.

II CONSIDERATION OF EXPERT TESTIMONY

None of the three medical witnesses treated Alma; all examined him for the purpose of testifying at trial. Dr. John E. Cowan, an orthopedic surgeon, was called by the plaintiff in his case in chief. He testified that Alma had a congenital spinal defect, known as spondylitis, in the fifth lumbar vertebra. This defect consists of an incomplete development of the vertebra. He also testified that the X-rays revealed a significant displacement of this vertebra at this point, a condition known as spondylolisthesis. It was his opinion that the fall had aggravated the congenital spinal defect, causing low back pain radiating down the right leg and resulting in permanent partial disability. He indicated that Alma's diabetic condition had no bearing on the disability in his back and right leg.

Maritime, in the presentation of its defense, called Dr. Byron C. Pevehouse, a neurosurgeon. He agreed that Alma had the congenital spinal defect (spondylitis), but he testified that the X-rays did not reveal any significant displacement of the vertebra (spondylolisthesis), and that without such displacement the disability claimed could not be the result of the fall having injured the vertebra. He attributed Alma's symptoms to his diabetes.

In rebuttal the plaintiff called Dr. Gerald Gill, an orthopedic surgeon, who had done considerable specialized research concerning spondylolisthesis. Dr. Gill had been asked by plaintiff's counsel to examine Alma following Dr. Pevehouse's testimony. Dr. Gill took some additional X-rays and performed some additional reflex tests. He concluded that the fall had aggravated the spinal defect and caused permanent partial disability. He disagreed with Dr. Pevehouse that the initial X-rays showed no vertebra displacement and also testified that the newer X-rays he had taken of Alma in a standing position further revealed the displacement. He also testified that the ankle-jerk test he had performed confirmed his conclusion concerning the disability and its cause.

Because the doctor was called as a rebuttal witness, Maritime objected to admission of the new X-rays and to testimony concerning Dr. Gill's own examination of Alma. The district court ruled that Dr. Gill's testimony initially would be limited to consideration of materials already in evidence, but that the court would later consider a motion to reopen the plaintiff's case. Provision was made for Maritime's counsel to examine the X-rays taken by Dr. Gill.

Initial questioning of Dr. Gill was limited to rebuttal testimony. Alma's counsel then asked Dr. Gill about conclusions drawn from his own examination of Alma. Maritime's counsel objected to this inquiry, but stated no grounds for the objection. In overruling the objection, the court clearly stated that Dr. Gill would be permitted to "reopen the subject" of his examination of Alma. Maritime did not reassert its objection. It did not request the opportunity to present rebuttal evidence; nor did it request that the court confine its consideration of the testimony to its rebuttal aspects.

The opinion evidence presented by Dr. Gill was clearly relevant and Dr. Gill was In non-jury cases, the district court is given great latitude in the admission of evidence. Hollinger v. United States, 651 F.2d 636, 640 (9th Cir. 1981). Where a new trial is sought on the basis of an evidentiary ruling, evaluation of the motion is left to the discretion of the trial judge. Traver v. Meshriy, 627 F.2d 934, 940-41 (9th Cir. 1980); Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir. 1973). The trial court may grant a retrial on the grounds of fundamental unfairness. Peacock v. Board of Regents, etc., 597 F.2d 163, 165 (9th Cir. 1979). However, the district court's conclusion that no such unfairness was present may be reversed only if this court has a definite conviction that that conclusion was a clear error of judgment. Ruiz v. Hamburg-American Line, 478 F.2d at 31, quoting States Steamship Co. v. Philippine Airlines, 426 F.2d 803, 804 (9th Cir. 1970).

clearly qualified to give the opinion. The only question was the order of proof.

In his memorandum denying the motion for new trial and amendment of the judgment, the trial judge carefully examined the circumstances surrounding Dr. Gill's testimony. He identified portions of the trial transcript in which he stated that the X-rays taken by Dr. Gill would be admitted and that the doctor would be allowed to describe his examination of Alma. He had stated specifically that Dr. Gill could reopen the subject. He noted that Maritime failed to object specifically to these statements or to seek limitation of the use of the evidence. He concluded, based on these findings, that there was no unfairness or surprise. This conclusion is well-supported by the record.

III COMPUTATION OF THE PLAINTIFF'S AWARD

The second issue on appeal is whether the court erred in failing to discount the award of future earnings to its present value. Maritime presented no evidence at trial concerning the appropriate discount rate, but contends that court was obligated to discount the award at a rate that it should determine as a matter of judicial notice. The district court held that in absence of evidence of an appropriate discount rate it would not discount the award.

In United States v. English, 521 F.2d 63 (9th Cir. 1975) this court considered the application of the interaction of a present value discount and of an adjustment for inflation to damage awards. We held that in computing a damage award under California law, the trier of fact could consider competent evidence of inflation. Id. at 74. That decision was expressly limited to wrongful death actions. Id. at 76. It was also limited to Federal Tort Claims actions in which the applicable state law supported consideration of inflation. See Hollinger v. United States, 651 F.2d 636, 641-42 (9th Cir. 1981).

In Sauers v. Alaska Barge, 600 F.2d 238 (9th Cir. 1979), the English rule was applied to the damage claims of an injured plaintiff who brought his action under federal...